Mar 2005

Extracted from text ... On the 30th November 2003, the
Supreme Court of Appeals in
Fourie and Another v Minister of Home
Affairs and Another, Case Number:
232/2003 declared the common law
prohibition of same sex marriage
unconstitutional, which paves the way
for the statutory and regulatory laws to
be changed as well.
The case challenged the common
law definition of marriage. According to
the current common law definition,
marriage is a legally
recognised union for life
between one man and
one woman, to the
exclusion of all others
while it lasts. By
defining marriage
thus, the common law
expressly prohibited
two persons ..

Extracted from text ... NEWS & VIEWS FOR MAGISTRATES
2
In the previous issue we considered
what Bhe v Magistrate, Khayelitsha
(case CCT 49/03) has to say about the
male primogeniture rule of customary
law and the legislation regulating it. In
this issue, the Court's view on its obligation
to develop customary law in terms
of section 39(2) of the Constitution is
discussed. For the purpose of the discussion
a distinction is drawn between
the recognition and application of customary
law (in terms of section 1 of the
Law of Evidence Amendment Act, 45 of
1988) and the development of customary
law, as ..

Extracted from text ... Victims'
charter
approved
Cabinet approved the South
African Service's Charter for
Victims of Crime on 1 December
2004. It contains the following
seven victims' rights: the right to
information, the right to protection,
the right to assistance, the right to
be treated with fairness and with
respect for your dignity and privacy,
the right to compensation and
the right to restitution.
It aims to instil in the people of
South Africa an improved sense of
security, empowerment and trust in
the processes played out in our
courts.
The Minister of Justice mentioned
that the Charter is consistent
with the ..

Extracted from text ... 3
By Anashri Pillay
Public Law Department, UCT
The appellant had been convicted in the magistrate's court of the theft of clothing,
valued at R 190, from a clothing line. Due to the fact that he had a number
of previous convictions, the case was sent to the regional court for a sentence to
be handed down. Section 286(1) of the Criminal Procedure Act 51 of 1977 provides:
Subject to the provisions of subsection (2), a superior court or a regional court
which convicts a person of one or more offences, may, if it is satisfied that the
said person ..

Extracted from text ... NEWS & VIEWS FOR MAGISTRATES
4
F O C U S O N K W A Z U L U N A T A L
The South African Chapter of the
International Association of Women
Judges (IAWJ) was launched in August
2004. One of its aims was to initiate
and/or become involved in community
outreach efforts in order to, inter alia,
raise the profile of the Justice System as
well as awareness that the Judiciary is
concerned about and active in community
affairs. With this in mind, the IAWJ
resolved to join with other organisations
to strengthen their initiatives ..

Extracted from text ... 5
Glencoe Magistrates
Court
By Vanja Karth and Magistrate Foyster, Glencoe court
The Glencoe Magistrates Court breaks the usual mould of a drab, unfriendly
austere building. Instead it is painted in warm colours of 'cinnamon toast',
'clay-oven' and 'herb green' which together with pot plants creates a warm and
welcoming yet professional look.
Following an upgrade of the building which took place in 2001, Magistrate
Foyster approached all the staff members for a contribution in order to establish
a garden. Virtually everyone made a contribution and with the funds they planted
9 palm trees down the side of the ..

Extracted from text ... NEWS & VIEWS FOR MAGISTRATES
In a recent contribution to evaluation of
the criminal justice system Wilfried
Scharf and Boyane Tshehla (2003 Acta
Juridica 160 at 161) wrote 'In the early
stages of democratization one of the
biggest challenges in respect of the
criminal justice system is the time-lag
between the dismantling of the old
South African system and the construction
of the new'.
In an assessment of the progress
which has been achieved during the first
decade of constitutional democracy,
account must be taken of this time-lag
and the causes therefore. In the first
blush of freedom during the ..

Extracted from text ... Women in prisons
Areport compiled by Judge Johannes
Fagan, has revealed that many
women are being held in jail because
they cannot afford to pay the fines or the
bail.
Of 986 awaiting-trial women, 330 of
them cannot pay their bail - which in
some cases is as low as R200. A total of
4 152 women are in prison, of whom 3
166 have been convicted, reports Die
Burger.
Women constitute 2.3% of the country's
prison population, a low percentage
compared to other countries. Women
prisoners are concerned the most about
lack of contact with their families, says
the ..

Extracted from text ... LRG
New look website
LRG's website has been updated. The
website can now be found at
www.lrg.uct.ac.za. There is a
news/events section on the homepage
which is updated twice a week with
media articles relevant to the judiciary,
recent court decisions, news about legislation
etc. These are archived and the
archive is searchable on the website.
In the course of this year we intend
adding online resources for magistrates
to the site as well. We hope that our
website is informative and a useful
resource to all of you who have internet
access.
Staff changes
As many of you ..